Category Archives: immigration

A ray of sunlight in East Haven

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the land of steady racism

East Haven, Connecticut’s most famous modern day “sundown town“, has just learned what it feels like to be on the other end of a good scrubbing. The town, you will recall, made the news when the DOJ filed a federal lawsuit alleging racial profiling and violation of civil rights for its policy of targeting minorities for traffic and other violations. From the DOJ report [PDF]:

  • The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
  • However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
  • Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
  • Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
  • Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.

Yesterday, in the wake of another guilty plea by one of the embattled police officers, the town and the DOJ announced an agreement that they entered into, which will halt the lawsuit for the time being. The consent decree is 54 pages long and I’ve embedded it below. In it, East Haven agrees that:

  • EHPD officers shall conduct investigatory stops or detentions only where the officer has reasonable suspicion that a person has been, is, or is about to be engaged in the commission of a crime.
  • EHPD officers shall not use “canned” or conclusory language in any reports documentinginvestigatory stops, detentions and searches. Articulation of reasonable suspicion andprobable cause shall be specific and clear.
  • EHPD officers shall not use or rely on information known to be materially false or incorrect in effectuating an investigatory stop or detention.
  • EHPD officers shall not use demographic category as a factor, to any extent or degree, in establishing reasonable suspicion or probable cause, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • EHPD officers shall not use demographic category in exercising discretion to conduct a warrantless search or to seek a search warrant, except as part of an actual and credible description of a specific suspect in an ongoing investigation.
  • Where an officer seeks consent for a search, the officer shall affirmatively inform the subject of his or her right to refuse and to revoke consent at any time, articulate and document the independent legal justification for the search, and document the subject’s consent on a written form that explains these rights
  • EHPD officers shall only arrest an individual where the officer has probable cause. In effectuating an arrest, EHPD officers shall not rely on information known to be materially false or incorrect. Officers may not consider demographic category in effecting an arrest, except as part of an actual and credible description of a specific suspect in an ongoing investigation.

Sadly, I could go on. This is pretty basic stuff here that the EHPD has failed to do in the past and needs to do in the future to rectify their despicable practice of targeting minorities. What’s interesting, though, is that the decree also includes a provision stating clearly that citizens have the right to observe and record police conduct and that the EHPD cannot interfere with that. This is obviously a response to the glut of arrests state-wide and across the country of people who were merely recording police activity:

  • EHPD shall ensure that onlookers or bystanders may witness, observe, record, and/or comment on officer conduct, including stops, detentions, searches, arrests, or uses of force in accordance with their rights, immunities, and privileges secured or protected by the Constitution or laws of the United States.
  • Officers shall respect the right of civilians to observe, record, and/or verbally comment on or complain about the performance of police duties occurring in public, and EHPD shall ensure that officers understand that exercising this right serves important public purposes.
  • Individuals observing stops, detentions, arrests and other incidents shall be permitted to remain in the proximity of the incident unless there is an actual and articulable law enforcement basis to move an individual, such as: an individual’s presence would jeopardize the safety of the officer, the suspect, or others in the vicinity; the individual violates the law; or the individual incites others to violate the law.
  • Individuals shall be permitted to record police officer enforcement activities by camera,video recorder, cell phone recorder, or other means, unless there is an actual and articulable law enforcement basis to deny permission.
  • Officers shall not threaten, intimidate, or otherwise discourage an individual from remaining in the proximity of or recording police officer enforcement activities.
  • Officers shall not seize or otherwise coerce production of recorded sounds or images,without obtaining a warrant, or order an individual to destroy such recordings. Where an officer has a reasonable belief that a bystander or witness has captured a recording of critical evidence related to a felony, the officer may secure such evidence for no more than three hours while a legal subpoena, search warrant, or other valid order is obtained.

Of course, this does nothing but force the members of the town’s police department and the mayor to behave in an orderly fashion. The consent decree does nothing to actually enhance their tolerance of minorities. East Haven Mayor Joseph Maturo, after all, is the same man who upon being re-elected in 2011, reinstated suspended Police Chief Gallo and then allowed him to retire. He’s also the man who, upon being asked what he was going to do for the Latino community in the wake of these allegations, glibly stated that he might go home and eat a taco.

The question, of course, is whether this ray of sunlight will disinfect the whole town in years to come or whether, when the FBI has moved on, the windows will be shuttered again and embedded racism allowed to fester again. Rev. Manship, whose arrest for videotaping the harassment of a Latino shop-owner kickstarted this effort, says just as much:

“When the spotlight’s on, everybody’s behaving well,” Manship said, “so the real test for this will be years after the Department of Justice has left East Haven and [see if we] can have a Police Department where everybody is comfortable, safe, and can go to and not be afraid of.”

Isn’t that what we should want?


 

Padilla: It’s not that complicated, really

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[Yes, another Padilla v. Kentucky post. Sorry, suck it up.]

Padilla is what some might call a “landmark” case; altering the landscape at least for the defense practitioner. So, with reason, it has generated much discussion among those of us who’ve chosen to make our views and opinions public. And with any such new “landmark” decision, there’s a difference of opinion as to the impact and specifically in this case, the impact on the duties and responsibilities of the defense lawyer.

Scott has written several posts bemoaning the lack of clarity in immigration law and warning us all that we now have this awesome burden that really isn’t one we can bear. In his latest missive, he enlists the help of Darth Vader Justin Bieber Ken “I used to be a defense lawyer” Lammers at KrimLaw.

There’s nothing better than the simple life, where a handy “cheat sheet” gives a laundry list of everything you need to know.  Print it out. Carry it to court. Be brilliant.  Except…that’s not really the problem.  The problem is that the Padilla duty is largely a no brainer at the extremes, where the immigrant defendant pleads to possession of 457 kilos of cocaine with intent to sell (it’s a little large for personal use anyway), or doing 37 in a 35 mile per hour zone, with or without your windows excessively tinted.  The problem is toward the middle of the spectrum, where all this mushy information does little to inform.

[That link is inserted by me.] If I understand Scott’s point correctly, he’s saying that the decision places an unfair burden on us to investigate, learn and give advice about a really complicated area of law, in the mushy in-the-middle circumstances of immigration consequences.

I’m not sure that’s what Padilla requires. Let’s go back to the decision and see what Justice Stevens said:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.

This is exactly the scenario that Scott writes about. So what does the Court have to say about it?:

The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

I’m not sure there’s anything complicated about that. Now, one might turn around and argue that it’s difficult to know in which situations the consequences are “truly clear”. Perhaps. But those situations aren’t tough to figure out. Unless you’re saying “hey, I don’t really want to figure out in what circumstances my client will be deported”.

Ken writes:

I can remember talking to State officials and defense attorneys who specialized in Spanish language defendants and hearing the same thing more than once, “Yes, the feds can deport, but they don’t want to be bothered unless there is a violent felony.” Of course, it wasn’t always phrased quite so blandly. So, the attorney in Padilla’s case may have been giving what was basically reality based advice based upon experience. I haven’t seen the feds swoop in and deport people therefore, they shan’t do it to you. Of course, the problem with this is that the feds can alter their behavior randomly and unilaterally. And, in Padilla’s case someone in the federal government thought that transporting a tractor-trailer full of marijuana might just be a reason to deport someone.

There’s quite the difference between “this is a deportable crime” and “yeah, sure you can be deported, but you won’t be, really”. The former is Constitutionally sound advice; the latter is not. Just because the Feds may or may not deport your client doesn’t absolve you of the duty to inform your client that he is subject to deportation.

And that’s all Padilla requires you to do (which makes it seem more and more like an empty decision, the more I think about it): tell the client there’s a chance he will be deported. It does not impose a duty on you to try and figure out how to prevent him from being deported, but certainly no one will complain if you do.

In the comments to Scott’s post, another blogger writes:

The real problem is that none of the cheat sheets are state specific – criminal law is state specific – immigration law is not – and it is here where these two intersect. You’ve got to know the specifics of the state law and most immigration practicioners do not. And the answer is always, it depends.

Personal experience with immigration lawyers varies and the range of skill within the immigration law bar varies just as much as it does in the criminal law field. But any immigration lawyer worth his degree and reputation will absolutely know the intricacies of the law of the state in which he practices. He has to. After all, most people are deported based on state convictions. So find a good one, talk to him or her. Every reputable immigration lawyer I’ve called has been more than happy to not only give me an educated guess on whether the client is deportable but also on how to avoid that deportation and what the client should plead to.

The bottom line, as far as I can see, is this: If the consequences are clear (and they usually are, save for the myriad drug offenses), then tell your client that he will be subject to deportation. If the consequences aren’t clear, then tell your client that he may be subject to deportation. If he wants to know more, find out. Call an immigration lawyer, go to a CLE. Unless you’ve been catering solely to clients who are citizens, this is going to come up again and again. Spending a day or so learning about the immigration consequences or picking up a phone and talking to someone knows will only make you a better lawyer. Maybe some of you can leverage that into a niche practice.

But remember that the obligation is to the client and the client only. The more you know, the better you serve the client.

[What I think will really end up happening here is that courts will start including an "immigration consequences" portion to their plea canvasses, much like that which is required here in CT by statute: "do you understand that this plea may result in deportation or removal?". Which would - and does - satisfy Padilla and everyone's obligation.]

Dealing with Padilla v. Kentucky

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SCOTUS’ decision in Padilla v. Kentucky has generated a lot of discussion and rightly so. As I noted in one post, some are concerned about the additional burden being placed on defense lawyers to learn and be informed of the highly complex area of immigration law.

Never fear. Here’s a practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

Padilla v. Kentucky: If it is clear, it is clearly your duty

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Yesterday, in Padilla v. Kentucky, the United States Supreme Court finally got around to affirming and acknowledging that which most of us in the field already knew: immigration consequences matter.

Writing for a 5-4 majority (7-2, if you count the concurrences), Justice Stevens opined that when the immigration consequences of a plea are clear, it is Constitutionally deficient for a defense attorney to neglect to inform the defendant of those consequences. Well, duh.

As SCOTUS itself recognized in INS v. St. Cyr, for the non-citizen defendant, the fact of deportation may be the single most important factor in deciding whether to plead guilty. We’ve known this forever.

Moreover, several states, including Connecticut, require courts, by statute, to inform defendants during the plea canvass that their plea might have immigration consequences. In cases where the immigration consequences are unclear, Justice Stevens writes, the defense attorney must meet at least that threshold.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

There may be some who throw their hands up in the air at yet another thing the defense attorney has to do or learn. In a lot of situations – and I’m looking at you, public defender offices – the sheer volume of business is such that it’s hard to keep up with changes in substantive criminal law, let alone familiarize oneself with the immigration consequences.

I don’t think that’s a legitimate complaint: for one, the defense attorney is already ethically and morally bound to advise the client of all matters that are relevant to the client’s decision to plead guilty. I’m sorry to say that our role as counsel is not limited to just the criminal arena. The consequences of a conviction extend far beyond the local penitentiary these days. Housing, immigration, child custody are all consequences that stem from the fact of a conviction and are all issues that are important to the client.

It helps to think about the kind of lawyer you want to be. Do you want to be a lawyer who does the bare minimum and relies on the judicial dam that stems the tide of ineffective assistance of counsel claims? Or do you want to feel good about yourself when you go to bed at night, knowing that you’ve accurately and honestly helped someone make a decision that will severely impact their life?

And how difficult is it, really? The big ones are no-brainers: robbery, murder, assault, rape, kidnapping. All will result in deportation. The drug offenses are where it’s difficult. But if that’s your stock-in-trade and you don’t familiarize yourself with the immigration consequences, you will lose business or gain a bad reputation. It’s that simple. Even simpler, call an immigration attorney. Every single reputable immigration attorney I know will gladly take a few minutes of his or her time to give you a rough approximation of the consequences, if any, of the plea and even tell you how you can structure the plea to avoid deportation (if possible).

The effort required to discover this pertinent information is minimal and you owe it to yourself and your client to make it.

Finally, just a reminder of the ethical responsibilities. The Rules of Professional Conduct states:

Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

The commentary to and analysis of Rule 1.1 also provides handy guidance.

Legal fictions: collateral consequences edition

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Back in the day, I posted about two different legal fictions: rehabilitation during voir dire and the difference between the standard of proof in trials and VOP hearings. Here’s another that’s been stuck in my craw for a week or so now: collateral consequences that really are direct consequences but no court will acknowledge that.

Most specifically, I’m referring to immigration consequences of pleas – and no, not illegal immigrants. There are plenty of legal residents of this country that get deported after obtaining convictions. The standards for deportation are so low: almost anything can be an aggravated felony that results in deportation (yes, even possession of marijuana).

But that’s not the problem. If you’re aware of that pre-trial, you can deal with it or make an informed decision. What really gets me is when defendants have absolutely no clue that if they plead guilty to a particular crime, they will face almost certain deportation and courts simply throw up their hands and say “too bad!”

The law in this area is absolutely terrible and almost all of it because immigration consequences are deemed “collateral”. There is very little more direct (besides the actual incarceration) than facing deportation as a result of a conviction. In most cases, it is the legal resident who has lived here his entire life, whose “home” country has no connections for him, who gets screwed.

In fact, the law is so terrible that attorneys have zero obligation to actually inform their clients about the immigration consequences of their convictions. They can say absolutely nothing about a possible deportation and yet they would have performed adequately. It is only if there is a misrepresentation about immigration consequences will courts look at the performance of attorneys.

There is nothing more absurd than protecting an attorney for failing to advise his client about a very real and very important consequence of a conviction. Yet, this is prevailing law of the land.

As an attorney, wouldn’t you want to know if the conviction will result in deportation? How difficult is it to ask if the client is a citizen and if not, know and understand the consequences of a conviction. It is our job as counsel to adequately and effectively advise our clients about their options and the consequences of their actions. Certainly the very real possibility of deportation is something that we should add to our checklist of things to do. Sure, immigration law is complex, but as with all things, it becomes clearer once you familiarize yourself with it. It should be made a part of every attorney’s training and practice.

The courts certainly aren’t going to help our clients in this arena; shouldn’t we?

New Haven ID Card holders identity to remain secret

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A big battle has been going on in New Haven, CT, which I’ve been remiss in addressing. It all stems from New Haven’s handing out of city IDs to any resident who wants them. The photo IDs act as a replacement for state issued id cards and licenses, allowing residents to open bank accounts, among other things.

The problem, however, is that this ID program originated as a way to protect illegal immigrants who are residents of New Haven. Protect here doesn’t mean protect them from authorities, but rather protect them from violence. Violence against illegal immigrants had been on the rise because it had become well known that they would carry large sums of cash around, being unable to open bank accounts to deposit the cash into.

New Haven, in consideration of its residents, passed this program to permit any resident to obtain an ID. Now, anti-immigration groups and one newspaper editor want the names of those issued ID cards.

On June 25, a hearing officer of the State Freedom of Information Commission denied the request to hand over the 5000 plus names. The ruling is here.

[The hearing officer] found that “the ID Card program unleashed a level of vitriol and venom aimed at City officials and illegal immigrants that was far beyond mere political disagreement or healthy civic engagement, according to testimony.”

“We met the burden of proof and look forward to moving past this so that we can continue to grow this successful program,” said Kica Matos, the city’s Community Service Administrator, in the city press statement.

Ms. Matos herself was the subject of disturbing and threatening e-mails and postings, some advocating her murder.

The city had declined to reveal the names, citing specific threats and the fear of a rise in crime against people with Spanish sounding names, regardless of their citizenship status.

Finally, yesterday, a full panel of the FOIC considered the hearing officer’s report and voted 3-1 to uphold that decision.

In the end, commissioners expressed sympathy with the argument made by the city and its expert witnesses that threats of violence against city officials and immigrants in general warranted keeping the identities of cardholders secret. The cards are not held just by immigrants, but they are designed to help immigrants integrate into city life. The cards entitle holders to access to city services like libraries and parks, and are designed as secondary documentation to help open bank accounts.

Ironically, one of the groups opposing the disclosure of the names was the state Department of Emergency Management and Homeland Security.

It should come as no surprise to you that I support their decision. While illegal immigration is a crime, there is no need to endanger the lives of people by revealing only their names.